[2014] 1 F.C.R. D-2
Aboriginal Peoples
Lands
Appeal from Federal Court decision (2012 FC 915) summarily dismissing appellants’ claim on basis limitation period expired pursuant to Public Officers’ Protection Act, R.S.S. 1978, c. P-40, Limitations of Actions Act, R.S.S. 1978, c. L-15—Crown entering into Treaty No. 4 with appellants in 1874—Pursuant to that Treaty, Peepeekisis Reserve No. 81 set aside for appellants—In 1896, “scheme of colonization” established by Indian agent whereby sections of Peepeekisis Reserve surveyed into lots to settle ex-pupils from various Indian schools not members of Peepeekisis band—As part of 1911 agreement, numerous pupils settled on reserve, but overall size thereof remaining unchanged, thus reducing land base available to original band members, descendants—Various band membership protests initiated in early 1950s by original band members, but those protests rejected—Matter pursued, but record disclosing no activity from 1962-1982, at which time Specific Claims Policy adopted—Specific claim related to scheme of colonization submitted for negotiations in 1986—While Indian Claims Commission recommending that claim be accepted for negotiation, Crown disregarding recommendation on ground matter res judicata—As a result, litigation previously started in Federal Court reactivated—While Judge not accepting claim of res judicata, nevertheless concluding claim barred by limitation periods—Issues whether Judge erring in finding Public Officers’ Protection Act, Limitations of Actions Act applicable herein; if not, whether litigation may be pursued as declaratory proceeding engaging honour of Crown—Des Champs . Conseil des écoles séparées de langue française de Prescott-Russell, [1993] 3 S.C.R. 281 holding that fundamental issue to be determined is whether power or duty relied on as part of cause of action properly classified as “public duty or authority” having public aspect or connotation as opposed to private administrative or subordinate aspect or predominantly private aspect—Appellants herein fundamentally seeking “damages arising from wrongful alienation of their lands, breach of Canada’s fiduciary obligation”—Now well settled that Crown’s fiduciary duty in management of reserve land, other band assets sui generis obligation not properly classified as “public duty”—Duty raised by proceedings herein sui generis obligation incumbent on Crown in nature of private law duty—Judge thus erring when finding that Crown acting pursuant to public duty in bringing new members onto Peepeekisis reserve, allotting to them sections of reserve land—As to finding Limitations of Actions Act applicable, while this limitation period may be extended when cause of action concealed by fraud, in present case, clear from record that by 1950s, large segment of Peepeekisis band aware of material facts underlying cause of action—No concealment of material facts by Crown—Judge thus correct to conclude claim statute barred—Finally as to whether claim may be pursued as declaratory proceeding, Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, standing for proposition that law of limitations not applying so as to preclude declaration specific obligation set out in Constitution not fulfilled in manner demanded by Crown’s honour—However, no need to decide this issue herein as principles set out in Manitoba Metis Federation not extending to cases where effective alternative dispute resolution mechanism available to plaintiffs—Here, process set out in Specific Claims Tribunal Act, S.C. 2008, c. 22 available to plaintiffs—Appeal dismissed.
Peepeekisis Band v. Canada (A-417-12, 2013 FCA 191, Mainville J.A., reasons for judgment dated August 12, 2013, 24 pp.)